No end of searching: A comment on the draft Public Service Ombudsman Bill 2016

On 5 December 2016, the Cabinet Office published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman and the Local Government Ombudsman to create a new organisation with strengthened governance and accountability for complaints about public services in England. The Bill has had a long gestation, starting with a review in 2014 by Robert Gordon QC, then a public consultation in spring of 2015, the government’s response one year ago, and now the draft Bill.

UKAJI is publishing a series of pieces on the draft Bill, from a range of contributors and perspectives. The initial post, by Richard Kirkham and Brian Thompson, asked whether the changes in the draft legislation constitute significant reform. In the second post of the series, Gavin McBurnie compared the recommendations for reform made by the UK Parliament and the PHSO with the proposals in the draft Bill. In the third post of the series, Della Reynolds of phsothefacts explored the draft Bill from a user’s perspective and expresses disappointment at the missed opportunity to bring in real and substantive change for users. 

Here, Nick O’Brien wonders whether the draft Bill’s focus on a consumerist model suggests that, in England, the ‘ombudsman enterprise’ has run out of steam.

By Nick O’Brien

We shall not cease from exploration

And the end of all our exploring

Will be to arrive where we started

And know the place for the first time

(Greeting to passengers at Liverpool Lime St Station, courtesy of TS Eliot, Little Gidding)

In 1978 Carol Harlow (41 Modern Law Review 446) argued that more than a decade after its creation the UK Parliamentary Ombudsman was an institution in search of a role. Nearly forty years later, the recent publication of the draft PSO Bill suggests that the search continues. The Bill in effect constitutes a modest proposal of new powers, the cumulative effect of which will be to position the new integrated institution for public authorities in England (and throughout the UK in respect of reserved Westminster functions) as a resolution mechanism for disputes which are for the most part between the consumers and producers of ‘public services’.  Whilst this may well be a laudable role that needs to be discharged by someone, it is far from clear that the PSO, or indeed any national ombud institution operating in an English or UK-wide context, can possibly be fit for such a purpose. So acute, in fact, are the inherent contradictions that it must be asked whether the ‘ombudsman enterprise’ in England (as opposed to Northern Ireland, Wales and Scotland, and indeed the Republic of Ireland, where the signs are more promising) has finally run out of steam, at least in its public-sector manifestation.

The ‘decline of the public’

Originally introduced by Harold Wilson’s Labour Government in 1967 as a means of reassuring a sceptical public that it need not fear a regime of bureaucratic state-socialism, the Parliamentary Ombudsman was conceived as a way of protecting what Lord Shawcross (in 1961 the Chair of Justice and author of the preface to the Whyatt Report) had called ‘the little man (sic)’ from the encroachment of the state. Half a century later, that original vision, if recalled at all, is likely to be dismissed as obsolete. The post-war era of ‘big government’ and social democracy now appears a distant mirage. Meanwhile, the ombud enterprise in the UK, reflecting broader patterns of change, especially since 1979, has been distinguished by the advance of private-sector ombud schemes and an overtly individualistic form of dispute resolution informed by a largely consumerist mentality. The ikon of this movement since 2000 has been the Financial Ombudsman Service, with its very considerable human and financial resources.

The more general ‘decline of the public’ (as charted, for example, by David Marquand in his 2004 book of that title) has for some time cast doubt on the very viability of a ‘public’ ombud institution: once ‘the public sector’ withers away, only meagre pickings remain. It is not surprising therefore that the trends that have shaped private-sector ombud institutions since the 1980s have also impinged on the work of public-sector ombuds. The creation of the Health Service Ombudsman in 1973, with a remit extending beyond maladministration to ‘service failure’ and eventually ‘clinical judgment’, went some way towards what Rudolf Stein had anticipated in 1971 as a ‘clearing house’ for NHS complaints lodged by its ‘consumers’. Before long, and after the operational union of parliamentary and health service ombuds in what became known as ‘PHSO’ (one person but two ‘natures’), the role of the Parliamentary Ombudsman was eventually eclipsed by that of the Health Service Ombudsman, health investigations outstripping parliamentary by a significant margin.

The very title of the current Bill confirms that for all practical purposes the function of public authorities insofar as they affect citizens is now universally conceived as the provision of ‘services’. This is a social imaginary in which the state as producer is set in polar opposition to the citizen as consumer. The primary role for an ombud in such a dispensation is as source of potentially large-scale individual consumer-dispute resolution. Whereas in many nation states (more than half of the membership of the International Ombudsman Institute, as Linda Reif has pointed out), the ombud has reinvented itself as part of the national human rights ‘structures’ and often as the UN-accredited national human rights institution (NHRI), the take-up of a human rights mandate by public-sector ombuds in the UK has been slow, notwithstanding notable expressions of commitment in the past and the impressive practical initiatives in Belfast over the last couple of years. Whilst the direction of international ombud travel increasingly looks towards a human (especially social) rights future, the door to such enterprise in the UK, and certainly England, is firmly locked; and were it to be left ajar, the Equality and Human Rights Commission would no doubt have something to say about it. The field is clear instead for the onward march of the consumer-redress model.

The PSO Bill: a consumerist model?

In the light of these constraining factors, it is hard to quibble with much that is actually in the PSO Bill, as far as it goes. There has, for example, been agitation for removal of the MP filter for decades, its original purpose long forgotten and almost unintelligible when ‘access’ has, understandably, become a watchword. The pursuit of a ‘single door’, if not quite a ‘no wrong door’, entry for grievances about ‘public services’ is an unremarkable consequence of the relentless erosion since 1979 of the boundary between local and central government in general, and between health and social care in particular. The idea of an integrated public services ombud for England was recommended by Colcutt 17 years ago and came within a whisker of implementation then. Little that has happened since suggests that the arguments from economy of scale, perspicacity and operational efficiency have diminished in the meantime. From an organisational and ‘access’ perspective, such integration seems long overdue.

As for accountability of the ombud itself, so vast have many ombuds offices become that the original idea of a single ‘personal mandate’ looks increasingly unrealistic and hard to match with actual practice: the creation of a Board structure replicates the arrangements in place for many other ‘modern’ public authorities.

Meanwhile, the Bill’s ‘limited moves towards raising complaints standards’ (as Brian Thompson and Richard  Kirkham aptly put it), whilst falling well short of the ‘design authority’ remit available to the Scottish PSO, nevertheless marks, ironically, a further potential narrowing of focus: instead of ‘humanising the state bureaucracy’ as a whole, the new PSO will instead be encouraged to limit its efforts to helping public authorities run their own complaints-handling process so that they in turn can deliver more effective consumer redress.

The apparently uncontroversial nature of these proposals is tribute to the pervasiveness of the ‘small-claims court’ consumerist ombud model they further facilitate. The most likely criticism of the Bill is that it has not gone far enough down the prescribed consumerist route. Why not, after all, explicitly spell out, especially in the face of the Supreme Court’s recent impatience with the Northern Ireland Ombudsman in JR55, the power of the ombud to award monetary compensation to the disappointed consumers of public services? And having done that, why not make such findings and recommendations binding and legally enforceable, so that effective ‘closure’ can be achieved? There are of course good answers to these questions rooted in the distinctive form of social ordering on offer from the classic or human rights ombud institution but not of the kind that will easily meet the demands of a fully fledged the consumer-redress model.

The complaints pyramid and the path not taken: ‘own initiative’ investigations

By contrast, the one reform previously under consideration that might in fact have made a real difference but in the end was not included in the Bill, namely ‘own initiative’ investigation powers, seems to be little lamented. The Danish ombud had such a power from the beginning, and the UK remains one of very few states in Europe whose national ombud does not, the others being Belgium, Luxembourg, Azerbaijan, Kyrgyzstan and Lichtenstein. With the ability to conduct own-initiative investigations an ombud is, in principle at least, liberated from dependence on the unselective sample of relatively few cases that cross the office’s threshold and can instead serve as an effective antenna for detecting the patterns and undercurrent of citizen grievance that might not find their way up the individual complaints pyramid.

Perched aloft that super-escalated pyramid, too far from the action to make sufficient difference on the ground and too dependent on chance to take a consistently strategic approach to investigation, the ombud is left with an unattractively remote, reactive and retrospective remit. Such a remit has after all been largely discredited in other forums, such as those of human rights and anti-discrimination regulation, where active, strategic and ‘reflexive’ approaches long ago, and certainly since the Hepple Report published in 2000, displaced the past emphasis on individual complaint and reactive litigation. Not surprisingly, the ombud’s immersion in individual cases, many of which are not especially representative of broader patterns of discontent or sufficient evidence base for strategic conclusions, has left the institution struggling to make itself heard in the recent public debates that have accompanied successive crises in, for example, health and social care.

Yet notwithstanding the PASC recommendation of own initiative powers in 2014 and their inclusion in recent Northern Irish and anticipated Welsh ombuds legislation, the PSO Bill offers instead something much less interesting: an explicit power to re-open or begin a new investigation if it is in the interests of fairness to do so, or to extend an investigation beyond the initial complaint, but only so long as related to the same, or ‘substantially the same’, facts. Within the confines of the existing legislation the Parliamentary Ombudsman’s Channel Tunnel investigation of an earlier generation had already pioneered such an approach. In practice, this rather coy new power is unlikely to prove transformative. Anything more ambitious no doubt founders on the rock that is the unusually cluttered regulatory and inspectorate landscape of England. In the end, the conclusion in Whitehall will surely have been that yet another ‘quasi-regulator’ on the public services block would be far more trouble than it is worth.

Size matters: the demographic challenge

In the absence of a viable human rights option, the Bill instead goes some way towards making the PSO a more credible consumer redress mechanism. In so doing, however, it simply nudges the ombud institution further into a role it is ill-suited to discharge effectively in an English or UK-wide context.

The main obstacle, already obvious in the 1960s but never properly addressed, is that of demography. In this context, size really does matter. It was after all a bold, perhaps reckless, move for the UK in 1967 to embark on the national ombud enterprise in the first place. The only other countries with national ombud at that date had relatively small populations: Sweden (10 million), Norway (5m), Denmark (5m), Finland (5m) and New Zealand (4m). It is still the case in Western Europe that the other states which approach the size of the UK (64m), or even England (53m), for that matter, do not replicate the arrangements here. Germany (80m) and Italy (60m) do not have national ombuds at all; Spain (46m) and Portugal (10m), and Poland (38m) do, but they have had a human rights mandate since the outset at the collapse of their respective totalitarian regimes. France (66m) did have an ombud (or mediateur) from 1974 but merged it with a new ‘human rights’ Defenseur des Droits in 2010. The ombud in the Netherlands (16m) about the same time campaigned to become the Dutch NHRI but lost out to the national equality authority. Further afield, Australia (23m) has a national ‘commonwealth’ ombud which, as Anita Stuhmcke has shown, takes seriously both human rights and systemic investigation, but there, as in Canada (36m), it is in the smaller states and provinces that the institution is especially prominent.

It is also worth recalling the extent of public authority vulnerability to complaint nation-wide in the UK, and in England in particular. When the National Audit Office commissioned research from the LSE in 2005, it found that as many as 1.4m cases were received through the redress system in central government as a whole each year. By contrast, the Ombudsman was in 2010/11 receiving just 23,422 complaints and investigating far fewer, with just 107 parliamentary complaints accepted for investigation that year. Even so, a PHSO Impact Study in 2010 found that public authorities on the receiving end of ombud reports already thought it was all too little too late, with findings and recommendations made so long after the event that the systems in question had long since been abandoned or reformed. The model of the Financial Ombudsman Service and its vast resources is no doubt one possible remedy and the logical end-point of the drive towards effective consumer redress lying at the heart of the PSO Bill. It hardly seems likely, however, that anything remotely approaching its resources will be available to the PSO, now or ever.

English exceptionalism: no love in a cold climate

After half a century of ‘ombudsman enterprise’, the unavoidable conclusion seems to be that England is just not a hospitable climate for a national ombud institution. The decline of social democracy and the public realm have largely defeated the original ‘classic’ administrative model. The human rights alternative is currently greeted with suspicion in Whitehall and Westminster, whilst the density of the existing regulatory sector makes the potentially transformative use of own-initiative powers unattractive to policy makers. Meanwhile the consumerist option, although earning general acquiescence, is unlikely to meet potential demand on a nationwide scale effectively, unless buffered by funding that far exceeds reasonable expectation.

It is hardly surprising that research by Naomi Creutzfeldt suggests that ‘trust’ in public sector ombuds in England is in short supply. The PSO Bill seems scarcely equipped to address the problem at root cause. On the international stage, the ombud is typically hailed as a successful ‘legal transplant’. In this, as currently in so much else, the prospect of English exceptionalism is all too real. In the meantime, Harlow’s search has yet to yield its anticipated haul. The sad fact is that it possibly never will.

About the author:

Dr Nick O’Brien is Honorary Research Fellow, University of Liverpool.